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Baker v. United States

United States District Court, D. Maryland

September 13, 2017

TERCEL BAKER, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. RDB-15-0290



         Pro se Petitioner Tercel Baker (“Petitioner” or “Baker”) pled guilty before this Court to Possession with the Intent to Distribute 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) on December 7, 2015. (ECF No. 42.) Subsequently, on March 15, 2016, this Court sentenced him to 144 months imprisonment, followed by four years of supervised release. (ECF No. 59 at 2-3.) Currently pending before this Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (“Petitioner's Motion”). (ECF No. 61.) Having reviewed the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons discussed herein, Petitioner's Motion to Vacate (ECF No. 61) is DENIED.


         On May 20, 2015, a federal grand jury returned a three-count indictment charging Baker with (1) possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1); (2) possession with the intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). (Indictment, ECF No. 1 at 1.) The stipulated facts included in the subsequent plea agreement describe the traffic stop from which Baker's charges stem:

On January 8, 2015, members of the Maryland State Police and Homeland Security Investigations conducted covert surveillance inside the Rainbow View Apartment Complex in Glen Burnie. They observed their target, Tercel Baker, exit his apartment and enter the driver's side of a Gold Lexus SUV. The officers followed Baker as he drove out of the complex.
They observed Baker commit several traffic violations…and initiated a traffic stop. After speaking with Mr. Baker and observing his demeanor, a K9 was ordered to scan the car, resulting in a positive alert for the presence of contraband. Officers searched the car and recovered an unmarked bottle with 26 oxycodone pills…Baker was arrested and searched…Officers found 14.4 grams of crack in Baker's underwear.
Officers applied for and received a search warrant for Baker's Rainbow View apartment. In the bedroom closet officers recovered 42.84 grams of marijuana and an additional 45 grams of crack. All of the narcotics were packaged for individual sale. They also found a High Point .40 caliber firearm with an obliterated serial number, and 50 rounds of ammunition in the same closet and over $12, 000 in cash.

(Plea Agreement, ECF No. 42 at 4-5.)

         Paul D. Hazlehurst, Esq., of the Office of the Federal Public Defender (“FPD”), was appointed to represent Baker at his Initial Appearance, (ECF No. 7), but the FPD withdrew from the case when Baker retained private counsel. (ECF No. 19 and 21.) After Baker's new attorney, Frank V. Boozer, Jr., Esq., entered his appearance in the case, Baker filed a Motion to Suppress Physical Evidence on July 2, 2015. (ECF No. 20.) This Court conducted a Motions Hearing on August 31, 2015. (ECF No. 20, 23, and 27.) At the hearing, the parties discussed a possible plea agreement, which Baker rejected. (ECF No. 33 at 7-9.) For the reasons stated on the record, the Court denied Petitioner's Motion to Suppress. (ECF No. 33.) Following this Court's ruling, Baker filed a pro se Notice of Interlocutory Appeal, which was dismissed by the United States Court of Appeals for the Fourth Circuit. Baker's counsel, Mr. Boozer, subsequently withdrew his appearance from the case. (ECF No. 30 and 31.) This Court then re-appointed Paul D. Hazlehurst, Esq. as counsel on September 15, 2015. The trial date was rescheduled from September 21, 2015 to December 14, 2015. (ECF No. 36.)

         On December 7, 2015, Baker entered a plea of guilty to Possession with the Intent to Distribute 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841(a)(1), pursuant to Count Two of the Indictment (ECF No. 42.) This guilty plea was entered pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure with an agreed range of sentence of 120 to 180 months. The remaining counts in the Indictment were dismissed on the motion of the United States. (ECF No. 59.) Baker's plea agreement contains several stipulations regarding sentencing. The parties agreed that the base offense level is 24, pursuant to U.S.S.G. § 2D1.1(c)(8), and that Baker qualifies as a Career Offender, pursuant to U.S.S.G. § 4B1.1. (ECF No. 42 at 5.) As a result of the Career Offender qualification, Baker's offense level is 34 and his criminal history category is VI. (Id.) However, based on Baker's acceptance of responsibility in the plea agreement, his offense level was adjusted down three levels to 31. (Id.) The Pre-Sentence Report (“PSR”) calculated an imprisonment range of 188 to 235 months, based on a total offense level of 31 and a criminal history category of VI. (ECF No. 46 at 16, ¶ 65.) However, the parties agreed to a sentencing range of 120 months to 180 months within the plea agreement, lower than the range recommended in the PSR. (ECF No. 42 at 6 - 7.)

         The plea agreement also includes Baker's waiver of his right to appeal his conviction, pursuant to 28 U.S.C. § 1291. (ECF No. 42 at 7.) Baker also waived his right to appeal his sentence, pursuant to 18 U.S.C. § 3742 or otherwise, except in the event that the imposed sentence was greater than the range agreed upon in his plea, 120 months to 180 months. (Id.) On March 15, 2016, this Court sentenced Baker to 144 months imprisonment, pursuant to the agreed upon sentencing range in the plea agreement. (ECF No. 59.) No direct appeal was filed. (ECF No. 61-1 at 7.)


         Pro se filings are “liberally construed” and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where: (1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” (2) the court lacked “jurisdiction to impose the sentence, . . . [(3)] the sentence was in excess of the maximum authorized by law, or [(4) the sentence] is otherwise subject to a collateral attack.” 28 U.S.C. § 2255. “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).


         I. Ineffective Assistance of Counsel

         In order to establish an ineffective assistance of counsel claim, Petitioner must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, Petitioner must show that his counsel's performance was deficient such that it fell below an “objective standard of reasonableness.” Id. at 688. In assessing whether counsel's performance was deficient, courts adopt a “strong presumption” that an attorney's actions fall within the “wide range of reasonable professional assistance.” Id. at 689. Second, Petitioner must show that his counsel's performance was prejudicial, meaning the defendant was “depriv[ed] . . . of a fair trial.” Id. at 687. To demonstrate such prejudice, Petitioner must show there was a “reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding[s] would have been different.” Id. at 694. Both of these prongs must be satisfied for the Petitioner to obtain the relief he is seeking. Id. at 687.

         In the plea bargaining context, “claims of ineffective assistance of counsel . . . are governed by the two-part test set forth in Strickland.” Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012) (citing Hill, 474 U.S. at 57). However, the “prejudice prong of the test is slightly modified” in that Petitioner must show “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (internal quotation marks omitted); see also id. (quoting Hill, 474 U.S. at 59).

         A valid guilty plea requires an “affirmative showing [by the defendant] that [the plea] was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). This affirmative showing cannot come from a “silent record, ” but rather must involve “a thorough, on-the-record inquiry.” Savino v. Murray, 82 F.3d 593, 603 (4th Cir. 1996) (referencing Boykin, 395 U.S. 243-44). The United States Court of Appeals for the Fourth Circuit has long recognized that “in-court representation[s] from the defendant are treated as conclusive with regard to the validity of the plea and may not be controverted later.” Id. at 603. “Thus, in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always ‘palpably incredible' and ‘patently frivolous or false.'” United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005). Further, the Fourth Circuit instructed district judges to “dismiss any § 2255 motion [without holding an evidentiary hearing], that necessarily relies on allegations that contradict the [Petitioner's] sworn statements.” Id. at 221-22.

         Baker alleges ineffective assistance of counsel on a number of grounds and against both attorneys in this case. Baker claims that Mr. Boozer failed to: (1) communicate with Baker and inform him of the relevant circumstances and likely consequences of pleading guilty as opposed to proceeding to trial; (2) attempt to negotiate a favorable plea agreement; and (3) conduct an adequate and independent trial investigation. (ECF No. 61-1 at 2.) Baker makes the same claims regarding Mr. Hazlehurst's representation, and further asserts that Hazlehurst failed to: (1) review, discuss and explain the PSR to Baker prior to the sentencing hearing; (2) argue for mitigation of punishment; (3) file substantive objections to the PSR; (4) object to Baker's sentence being substantively unreasonable; and (5) file a notice of appeal as Baker requested, in violation of petitioner's Sixth ...

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